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Moses v Commissioner of the Correctional Service [2025] PGNC 143; N11271 (5 May 2025)

N11271

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

HRA NOS 14, 67 & 70 OF 2024

SAMSON MOSES, LINUS MOSES & ESAU MOSES
Applicants

V

COMMISSIONER OF THE CORRECTIONAL SERVICE
First Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

WAIGANI: CANNINGS J
2, 5 MAY 2025

HUMAN RIGHTS – application by prisoners for enforcement of right to full protection of the law – calculation of due date of release from custody – whether pre-sentence custody ought to be deducted from head sentences.

Three prisoners were sentenced to ten years imprisonment. The sentencing judge ordered that their pre-sentence period in custody be deducted from the head sentence but this was not reflected on the warrants of commitment. This affected the due dates of release from custody calculated by the Correctional Service. The prisoners complained that they had incorrect due dates of release.

Held:

(1) It was clearly the intention of the sentencing judge that the pre-sentence period in custody be deducted from the head sentence.

(2) It involved no interference with the exercise of discretion of the sentencing judge to take the pre-sentence period in custody into account in calculation of the due dates of release.

(3) The applicants’ due date of release from custody on their detainee files is 16 January 2028, which date is amended to 1 June 2027.

Cases cited
Application by Bona Umauma (2024) N10876
Application by John Varimai (2024) N11117
Application by Wendol Agua (2024) N11122
Applications by Hobai Haro & Lolo Bellamy (2024) N11096
Complaint by John Irekau (2013) N4958

Counsel
S Kuli for the applicants

1. CANNINGS J: Samson Moses, Linus Moses and Esau Moses are prisoners at Bomana Correctional Institution. They are brothers. They are serving 10-year sentences for manslaughter. They are applying for enforcement of human rights. They say they are being detained with an incorrect due date of release from custody (DDR) , which does not take into account a considerable time they spent on remand before being sentenced.
   
2. In calculating their DDR the Correctional Service has not taken into account any pre-sentence period in custody and this is because their warrants of commitment simply state:
   

Length of sentence imposed 10 years IHL

Place of custody Bomana Correctional Institution.

3. However, the orders on sentence, as distinct from the warrant of commitment, state:
   
   • (a) The prisoner is sentenced to 10 years in prison in hard labour.
   • (b) Pre-trial custodial period deducted.
   • (c) Balance to be served at Bomana CS.
     
4. They have adduced evidence that they were each arrested and detained at Kerema Police Lock-up by 1 October 2020 and transferred to Bomana Correctional Institution and were detained there until they were sentenced on 3 February 2023. Their pre-sentence period in custody is 2 years 4 months 2 days.
   
5. The question of whether and how much pre-sentence period in custody to deduct from a head sentence is a matter of discretion for the sentencing judge under the Criminal Justice (Sentences) Act 1986. I must be careful that I do not allow the human rights jurisdiction of the National Court to interfere with the discretion exercised already by the National Court in its criminal jurisdiction.
   
6. However, it was clearly the intention of the sentencing judge, Sambua AJ, that the pre-sentence period in custody be deducted from the head sentence. It does not involve any interference with the exercise of his Honour’s discretion to take the pre-sentence period in custody into account in calculation of the due date of release (Complaint by Bona Umauma (2024) N10876). It is in the interests of justice to do that. It would ensure that the applicants are afforded the full protection of the law under s 37(1) of the Constitution. Therefore I will recalculate their due dates of release.
   

CALCULATION OF DUE DATE OF RELEASE (DDR)

7. A prisoner’s due date of release is a matter of law, to be calculated by examining court and Correctional Service records and interpreting and applying provisions of the Correctional Service Act.
   
8. I have set out a two-step approach to determination of the due date of release (DDR) in many cases, starting with Complaint by John Irekau (2013) N4958. Recent cases in which that approach has been applied include Application by Bona Umauma (2024) N10876, Applications by Hobai Haro & Lolo Bellamy (2024) N11096, Application by John Varimai (2024) N11117 and Application by Wendol Agua (2024) N11122.
   
9. Step 1: Identify the date of the first sentence and add to it:
   

(a) the total length of all sentences, and
(b) the total length of all periods, if any, the applicant was at large,

to arrive at a gross DDR.

10. Step 2: Deduct from the gross DDR the periods that the applicant is entitled to have deducted, namely:
    

(a) any pre-sentence period in custody that a court has ordered under the Criminal Justice (Sentences) Act be deducted, and
(b) remission of sentence under s 120 of the Correctional Service Act, and
(c) any period of suspension of the sentence,

to arrive at the net DDR.

Step 1

11. The date of sentence is 3 February 2023. To that date is added:
    

(a) the total length of all sentences – here there is only one sentence: 10 years; and
(b) any period the applicants were at large: here that is zero.

12. The gross DDR is 3 February 2023 + 10 years = 3 February 2033.
    

Step 2

13. From the gross DDR is deducted:
    

(a) the pre-sentence period in custody: 2 years 4 months 2 days;
(b) remission of sentence, 1/3 x 10 years = 3 years 4 months; and
(c) suspension: zero.

14. The net DDR is 3 February 2033 minus (2 years 4 months 2 days + 3 years 4 months) = 1 June 2027.
    

CONCLUSION

15. The applications will be granted. I will order that the applicants’ DDR be corrected. It must be emphasised that the Correctional Service is not at fault. The Correctional Service calculated the DDR in accordance with the warrants of commitment, which did not allow any deduction for the pre-sentence period in custody.
    
16. The fault lies elsewhere. Judges and lawyers are reminded of the importance of addressing the question of the pre-sentence period in custody, if any, that will be deducted from a sentence. Order 11 rule 5 of the Criminal Practice Rules 2022 states:
    • (1) When passing sentence the Judge shall, after specifying the length of the head sentence and before specifying whether any or all of the sentence will be suspended, determine in years, months, weeks and days, as the case may be, the specific period, if any, that will in the exercise of discretion under the Criminal Justice (Sentences) Act 1986, be deducted from the head sentence.
    • (2) It is not sufficient, in performance of the duty in sub-rule (1), to state that the pre-sentence period will be calculated later or that the period will be determined by the Correctional Service or any other person or authority.
      

ORDER

(1) The applications are granted in that the applicants’ due date of release with remission shall be amended to show that it is 1 June 2027.

(2) The Jail Commander, Bomana Correctional Institution, shall ensure that by 5 June 2025:

• (a) a sealed copy of this order is placed on each applicant’s detainee file; and
• (b) the detainee files and all other relevant files and records are amended to show that the due date of release is as shown in this order.
  

(3) These matters will be called on 12 June 2025 at 1.30 pm to check compliance with this order.

Lawyer for the applicants: Public Solicitor